The rise of generative AI systems such as ChatGPT, MidJourney and Stable Diffusion has dramatically changed the creative landscape. As a result, more and more questions arise about the copyright protection of works generated in part or entirely by AI. This blog discusses whether such works may be eligible for copyright protection and what conditions apply in that case.
Copyright protects the intellectual creation of the creator. This can include music, literature, art and even software. In most countries, copyright arises by operation of law, with no formal registration required.
Whether a work actually enjoys protection is tested by the courts. For this, the work must have an "own and original character" and bear the "personal stamp of the maker. This work test assumes the presence of human creativity. But what about when a work is (partly) created with the help of AI?
Generative AI works based on input from a user, often in the form of text commands (prompts). The AI then generates an image, text or other work based on the data the system is trained on. A major sticking point in copyright attribution is whether there is sufficient human intervention to constitute a copyrighted work.
Foreign case law provides some guidance on this question, but courts generally remain reluctant to grant protection to AI-generated works. AI systems are autonomous and unpredictable, so there is often a lack of creative control by a human. However, in a case in China, an AI-generated work did receive copyright protection because the human user had given very specific instructions and then further edited the work. This is seen as a sign that AI systems, like, say, a camera, can be considered tools in the hands of a human creator.
To qualify for copyright protection, a work must pass the work test. Therefore, it is essential to properly map out the creative process. The degree of influence you have had as a creator plays a crucial role here. This process can be broken down into three phases:
The concept phase: You direct the AI with specific instructions, determining the direction in which the work develops.
The realization phase: In this phase, the AI generates the work. Your influence is limited here because the AI works largely independently.
The editing phase: After the work is generated, you can make changes or refine parts, for example using editing software such as Photoshop or by making further adjustments through the AI.
The question is whether acts in the conception and editing stages contain sufficient human input to give the work a "distinct and original character that bears the creator's stamp.
The practice is currently in a legal gray area. It is still unclear whether works generated with AI are eligible for copyright protection. To increase the likelihood of protection, creators can do the following:
Specific input: With precise prompts, it can later be shown that you significantly steered the AI system toward a particular output. This increases the chances that your input will be seen as creative and significant.
Editing: After the AI has generated a result based on your prompt, it can add to your creative input when the output is further edited. This could include modifying the result by using Photoshop to edit the result, for example. This ensures that your personal stamp becomes more visible.
Documentation: Documenting your creative process can come in handy to show later that your input was essential.
Judges will likely look critically at the degree of human involvement. Did you control the process from start to finish and use AI only as a tool? Then you are more likely to be protected. If, on the other hand, you had a work generated entirely by AI without further creative intervention, then you are less likely to be able to claim copyright.
The copyright protection of AI-generated works is a complex subject that is constantly evolving. New technologies bring with them new legal issues. An important question is whether these technological developments fit within the current copyright review frameworks. The fact is that regardless of these (legal questions), there is increasing use of AI within the creative process.
